AuthorBerry, William W., III

INTRODUCTION 607 I. THE CONSTITUTIONAL PROBLEMS WITH CAPITAL FELONY MURDER 612 A. The Narrowing the Class of Murderers Requirement 616 B. The Flawed Elements of Capital Felony Murder 619 1. Mens Rea 620 2. Actus Reus 624 II. THE COURT'S FAILED EIGHTH AMENDMENT FELONY MURDER JURISPRUDENCE 628 A. The Evolving Standards Doctrine 628 1. Objective Indicia of National Consensus 630 2. The Purposes of Punishment 631 a. Retribution 632 b. No Intent 633 c. No Act 634 d. Deterrence 634 e. Capital Punishment May Deter the Felony, But It Cannot Deter the Death 634 f. Any Deterrence Would Be Marginal at Best 635 B. The Evolving Standards of Felony Murder Cases 635 1. Enmund v. Florida 636 2. Tison v. Arizona 638 C. Why the Felony Murder Evolving Standards Fail to Satisfy Furman's Requirements 640 1. Death is not Different 640 2. The Class of Murderers Is Insufficiently and Inaccurately Narrowed 641 III. A CAPITAL FELONY MERGER DOCTRINE 642 A. The Independent Felony Murder Merger Doctrine 642 B. A Capital Felony Merger Doctrine 643 C. An Example 646 IV. THE CASE FOR A CAPITAL FELONY MERGER DOCTRINE 647 A. The Evolving Standards Doctrine Has Failed 647 B. Mens Rea and Actus Reus Should Matter 648 C. The Doctrine Accurately Sorts Cases 648 CONCLUSION 649 INTRODUCTION

During the past half-century, felony murder has remained one of the most criticized crimes in U.S. academic circles. (1) At the heart of this criticism rests its lack of a mens rea requirement related to the homicide in question. (2) Still, the crime of felony murder persists (3) and, perhaps more significantly, remains punishable by the death penalty. (4)

Dating back to its common law origins, the criminal law has categorized homicides as either murder or manslaughter based on the mental state (mens rea) of the killer. (5) Generally speaking, in cases where the killer exhibits malice, the crime is murder; in cases where the killer does not exhibit malice, the crime is the less serious manslaughter. (6) The offender's mens rea (7) therefore defines a critical element of the categorization and corresponding punishment for homicide crimes. (8)

Closely related to the concept of mens rea is the act of homicide itself--the actus reus. (9) Homicide requires a defendant to act' (0) in a way that actually and proximately causes the death of a human being." As it is impossible to download the subjective intent from a killer's mind, juries and judges often infer the mens rea by examining the killer's behavior. (12)

A corollary concept, the offender's culpability, can also play a role in distinguishing between murder and manslaughter. Culpability refers to the individual's blameworthiness for the homicide. (13) The category (14) of mens rea (15)--the degree to which an individual intended to kill--can often correspond to the level of blame ascribed to the killer. (16)

But the concepts of mens rea and culpability can diverge in criminal law. In strict liability crimes, (17) for instance, the offender's culpability relates only to the actus reus; the mens rea is irrelevant. (18) With the exception of public welfare crimes, the Supreme Court disfavors strict liability crimes, often choosing to infer a mens rea requirement even where a statute does not contain one explicitly. (19)

Felony murder, though, provides a counterexample to the Court's veneration of the mens rea requirement, and it does so in the context of the serious crime of homicide. (20) Felony murder is a strict liability crime with respect to the criminal homicide in question. (21) In most jurisdictions, to be guilty of felony murder, an individual must have committed a felony, the commission of which caused someone to die. (22)

There typically is no required mens rea with respect to the homicide in a felony murder case, only the intent to commit the felony. (21) With felonies involving multiple defendants, an individual can also commit felony murder without causing death in a proximate or meaningful way--i.e., literally pulling the trigger--as long as the individual participates in the felony. (24) On its face, the felony operates as a kind of constructive malice that justifies elevating the homicide to first-degree murder.

As explored below, there are a number of rationales for felony murder statutes, but the concept of culpability rests at the center of the analysis. (25) To justify felony murder, the commission of the underlying felony must, in some way, give rise to a level of culpability that allows the mens rea of the felony to substitute for the mens rea of the homicide. For example, a person must rob a bank in a manner that makes them culpable in the death of the security guard at the hands of their accomplice or the police.

The problem becomes that these statutes create an umbrella of murder under which cases of disparate levels of culpability receive the same punishment. (26) Felony murder can encompass both a premeditated killing of a personal enemy and the heart attack of a bystander witnessing a theft crime in which the defendant had no intent to kill. (27) This difference may be more pronounced in states that separate murder into degrees, with felony murder often receiving the same categorization as the most serious murders. (28)

The end run around mens rea that felony murder statutes allow is especially striking where felony murder can lead to the death penalty. Indeed, it is troubling to think that states have executed--and likely will continue to execute--individuals that never intended to kill.

The Eighth Amendment, (29) which bars cruel and unusual punishments, offers a possible bulwark against such anomalous uses of state power. (30) On its face, it seems "cruel and unusual" to execute an individual that did not intend to kill or killed accidentally. Even worse, imposing a death sentence on someone not directly involved in the killing seems like an excessive (31) and outrageously rare (32) occurrence. This becomes particularly true in light of the Supreme Court's teaching that only the worst homicides should be eligible for the death penalty. (33)

Despite this logic, the Supreme Court has not resolved the capital felony murder problem because of its Eighth Amendment evolving standards of decency doctrine, which examines punishments categorically using objective and subjective indicia. (34) The structure of this constitutional test is incongruent with the mens rea problem presented by felony murder statutes.

Further, the Court's recent shift to the right makes the expansion of the Eighth Amendment evolving standards of decency doctrine with respect to felony murder unlikely in the near future. (35) Nonetheless, both conservatives and liberals would, in theory, welcome a more consistent application of criminal sentencing in capital felony murder cases even though they might differ as to the scope and nature of punishments.

To that end, this Article proposes a novel doctrinal approach by which the Court could promote more consistent sentencing outcomes in felony murder cases. Specifically, the Article argues for the adoption of a constitutional merger doctrine that "merges" the crimes felony murder and first-degree murder in capital cases. Just as felony murder cannot serve as a tool by which prosecutors can convert second-degree assault killings into first-degree murders, felony murder should also not serve as a tool to convert noncapital crimes into capital ones.

In Part I, the Article describes the use of capital felony murder and explains its constitutional infirmities under the Eighth Amendment. Part II explores the Supreme Court's failed attempts to apply the Eighth Amendment evolving standards of decency doctrine to capital felony murder cases and why the Court's doctrine remains an ineffective tool to remedy these injustices. In Part III, the Article proposes a new constitutional merger doctrine for capital felony murder cases. Finally, in Part IV, the Article makes the case for adopting the capital felony merger doctrine.


    To assess the relationship of the constitution to capital felony murder, it is instructive to consider the crime's origins. The origins of felony murder remain murky (36) but, as with many criminal law rules, derive in part from the English common law. (37) At common law, felony murder was a malice crime, but the malice was implied, not express. (38) The implied malice related to the commission of the underlying felony. (39) This meant that the malice required for murder came from the nature of the felony, not the nature of the homicide. (40) As the penalty for any felony crime was death, the intellectual gap between malice based on the felony and malice based on the homicide did not really exist. (41) The presence of felonious malice, whether in the commission of a felony during which a death occurred or in the actual homicide, resulted in the same penalty: death. (42)

    Over time, a sentencing gap emerged as states limited the death penalty to only rapes and homicides, (43) while punishing other felonies with imprisonment. (44) This meant that felony murder convictions, as capital homicide crimes, could rest on a mens rea, an actus reus related to a nonhomicide felony, or both. This was true even though the underlying felonies could not result in a death sentence.

    The British response to the changing norms with respect to felony sentencing was to abolish the crime of felony murder. (45) In the United States, however, capital felony murder persists in most death penalty states. (46) Indeed, this tradition has morphed into the present statutory norm in most capital states, where the crime of felony murder makes one eligible for the death penalty. (47)

    The justifications for felony murder (48) fall into several categories: deterring criminal conduct, reaffirming the sanctity of human life, transferring intent between individuals, and easing the state's burden of proof. (49) Proponents most often...

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